1. 13 Media Law Free Speech and Fairness

2. The Development of the Free Press The First Amendment: “Congress Shall Make No Law:”  does not just protect popular or conventional ideas  protects all forms of expression, including offensive ideas  even some level of false expression is allowed  free speech is the most basic guaranteed right  First Amendment also protects freedom of assembly and freedom of religion

3. The roots of American media law:  Colonial newspapers were licensed by British government.  “Published by Authority” was printed at the top of each edition.

4. The Zenger Case (1733):  involved colonial newspaper publishers John Peter Zenger and Anna Catherine Zenger  Zengers in trouble for publishing story about governor

5. Zenger argued he printed the truth, and jury found him not guilty case established truth as a defense against libel

6. Limits on free speech: Alien and Sedition Acts (1798):  punished anyone who published “false, scandalous, or malicious writings against the U.S. government, Congress, or the President  during World War I, 1,900 prosecuted under the acts  following the war, some of the free speech provisions were repealed

7. Protection of Individuals Libel—any published statement that unjustifiably exposes someone to ridicule or contempt A libelous statement must contain three elements:  defamation  identification  publication

8. Media defenses against libel suits: truth privilege:  government meetings, court proceedings, or government documents cannot be used as the basis for a libel suit opinions:  neither true nor false  editorial cartoons, parodies, and reviews

9. Gertz v. Robert Welch, Inc. (1974):  Private individuals deserve more protection: They have not voluntarily submitted themselves for public attention. They are less able to defend themselves than public figures are.

10. Invasion of Privacy: There is no explicit protection of privacy in the Constitution. The right to privacy is derived from:  “Freedom to associate” clause of the First Amendment: protects individual right to possess any type of literature in the privacy of his or her own home  The Fourth Amendment limitation on searches and seizures  Fourteenth Amendment limitation on disclosure of personal information

11. Four types of legal protection against invasion of privacy:  intrusion—invasion of privacy by physical trespass

12. embarrassment—information so embarrassing and private that a person has reason to expect that it will not be published

14. false light— publishing untrue statements that alter an individual’s public image in a way that he or she cannot control

15. Winslet libel win strikes blow for normal women Kate Winslet has accepted damages from the Daily Mail for an article that suggested she lied about her exercise regime

16. Misappropriation—using a person’s name or image for commercial purposes without permission

17. Privacy Law in Europe: France has relatively strict privacy laws: invasion of privacy, by its very nature, is damaging. In 2000 British Parliament passed the Human Rights Act: requires the press to observe a “proper balance” between privacy and publicity

18.  Spain and Germany have no laws governing the actions of the press regarding the private lives of public officials and celebrities.  Italy has limited privacy laws, with significant penalties.

19. Free Press/Fair Trial: The case of Dr. Sam Sheppard (1954): Case involved a prominent Cleveland doctor accused of murdering his wife. Papers ran headlines like “Why Isn’t Sam Sheppard in Jail?”

20.  Cleveland newspapers printed the names, addresses, and pictures of prospective jurors.  Jurors were allowed to view the media during the trial.  Sheppard was convicted, and later acquitted in a retrial.

21. The Supreme Court suggestions to ensure a fair trial:  put a gag order on participants in the trial  sequester the jury  postpone the trial until the publicity dies down  change the venue for the trial  order a new trial

22. Outside OJ Simpson Trial

23. Cameras in the courtroom:  The courts have held that a trial belongs to the public, not to the participants in the trial.  Initially, cameras were seen as too loud and obtrusive to be brought in a courtroom.  Newer technology has allowed for greater acceptance of filmed court proceedings.

24. United States v. Noriega (1990):  Restraining order issued against CNN to prevent broadcast of tapes of Noriega talking with legal council.  CNN played one tape, held in contempt of court.  Order eventually lifted.

25. Food Lion v. ABC (1992) ABC’s Prime Time Live show had two undercover reporters apply and pose as Food Lion employees. Reporters found unsanitary meat handling, reported on it. Food Lion sued for resume fraud and trespass. Eventually, Food Lion only awarded $2. Court recognized that Food Lion’s suit was a libel case in disguise.

26. Prior restraint—a judicial order that stops a media organization from publishing a story or image  Near v. Minnesota (1931): established a major precedent—even offensive material is protected by First Amendment

27. The Pentagon Papers (1971):  Daniel Ellsberg leaked military report about Viet Nam debacle to the media.  June 13, 1971, New York Times published the story: On June 15, Justice Department obtained restraining order against the New York Times.  On June 18, Washington Post prints story On June 19, restraining order filed to stop the Post.  On June 26, Supreme Court allowed publishing No “grave and immediate danger as to justify prior restraint.”

28. Obscenity  Obscene—describes sexually explicit material that is legally prohibited from being published  Roth v. United States (1957): The courts could regulate obscenity. Obscenity is not protected by the First Amendment.

29. Recommendations for defining obscenity: 1. Standard for obscenity is set by individual “community standards.” 2.The work must be “taken as a whole.” 3.The work must appeal to “prurient interests:” an “exacerbated, morbid or perverted” interest in nudity, sex, or excretory functions.

30. United States v. Larry Flynt Jerry FalwellLarry Flynt

32. Miller v. California:  States have used the obscenity standard to ban child pornography  Material with “serious literary, artistic, political, or scientific value” cannot be banned. Obscenity in the Information Age:  Web site owners have no control of where information goes/is downloaded.  Pay-per-view cable and satellite television have the same problem.

33. Regulation of the Media Industry First U.S. copyright law was passed in 1790:  provided fourteen years of protection, renewable for fourteen more.  extended to foreign authors/artists in the 1890s.  recently grew from twenty years to ninety-five years for a corporate copyright: eighty years after creator’s death for an individual copyright

34. The rise and fall of broadcast regulation:  Radio Act of 1912: regulated ship-to-shore communications  The Radio Act of 1927: created the Federal Radio Commission charged broadcast stations with acting in the “public interest, convenience, and necessity”  Communications Act of 1934: Radio Commission evolved into the Federal Communication Commission (FCC) brought all electronic communication under FCC control

35. Mandating fairness on the air  The Equal Time Provision: requires equal amounts of broadcast time to all candidates running for public office does not require providing air time, simply equal time  Fairness doctrine (1949): stations were required to cover controversial issues of public interest and to present contrasting views on those issues FCC ceased enforcement in 1985

36. The Telecommunications Act of 1996:  creation of the V-chip  relaxed limits on broadcast station ownership Regulation of the Internet:  difficult to define it as a media  no central authority controlling content  the Communications Decency Act failed